Qualification of Rights to Water
What is a qualification of rights to water?
Water availability is variable. A qualification to rights changes a legal entitlement to water. Rights to water that may be qualified include licences, water shares, bulk entitlements and environmental entitlements. Notably, the Crown’s right to water under ssection 7(1) and a person’s right to water under section 8(4)(c) cannot be qualified.
What is a temporary qualification of rights?
A temporary qualification of rights can be made in extreme circumstances to ensure critical water needs are met. Rights may be suspended, reduced, increased or otherwise altered after a water shortage has been declared under section 33AAA(2). This qualification of rights will remain in place until a time specified by the Minister.
Where rights to water are being qualified, this qualification must apply to all rights in the same proportion unless there are circumstances so extreme that they warrant some other basis (section 33AAC(4)). For example, people with permanent plantings (e.g. fruit trees) may have their rights qualified in a different proportion to people who use water for other purposes.
In some cases, the power to declare water shortages and temporarily qualify rights has been delegated to water corporations to enable the diversion of water from waterways and groundwater use to be managed in times of shortage. The Minister for Agriculture must be notified before rights to water are qualified (section 33AAA(3)). The Department of Environment and Primary Industries and water corporations have a substantial role in assessing water availability and advising the Minister on the qualification of rights. Water corporations have only been delegated the power to qualify rights where rights are to be qualified in the same proportion.
Why make a temporary qualification of rights?
If on a seasonal basis there is insufficient water in a water system to meet critical water needs at any particular time, a water shortage may be declared (section 33AAA(2)). When a water shortage has been declared rights to water may be qualified temporarily (section 33AAA(1)).
What is a permanent qualification of rights?
Division 4 of the Water Act 1989 grants the Minister for Water the power to qualify rights. The Minister may permanently qualify rights to water following a long-term water resources assessment which indicates that a decline in the long-term availability of surface water or groundwater has had a disproportionate effect on the environmental water reserve or on water allocated for consumptive purposes or that there has been a deterioration in waterway health for reasons related to flow (section 22K-T).
A permanent qualification cannot take effect until after 2021. Any subsequent qualifications must not take effect within 15 years of any previous qualification.
Why make a permanent qualification of rights?
If there is a long term change to water availability (for example as a result of climate change) the Minister may permanently qualify rights. A permanent qualification could only occur after the year 2021 (section 33AAB-C).